No maternity rights for mothers having children via surrogacy, court rules

Two women who had children through surrogacy arrangements and were denied maternity leave have lost their discrimination claim in the European Court of Justice.

Unusually, the European judges did not follow their own adviser's opinion that D, an NHS worker, and Z, a teacher in Ireland, should be granted the same rights as natural birth mothers under the pregnant workers directive.

Ruling in cases C-167/12 and C-363/12 the court said the directive did not require governments to provide maternity leave to a 'commissioning mother', even where she is breastfeeding the baby.

The court said the directive intended to encourage improvements in the safety and health at work of pregnant workers and workers who had recently given birth or were breastfeeding, and as such related directly to a woman's pregnancy, which had not been the case for neither D or Z.

Maternity leave, the court said, "is intended first, to protect a woman's biological condition during and after pregnancy and, secondly, to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment".

The court's own precedents, the judges said, were clear that maternity leave rules intended to protect the special mother-child relationship but that this concerned "only the period after 'pregnancy and childbirth'."

OUT OF SCOPE

"A female worker who as a commissioning mother has had a baby through a surrogacy arrangement does not fall within the scope of article 8 of directive 92/85, even in circumstances where she may breastfeed the baby following the birth or where she does breastfeed the baby," the court ruled before adding: "Consequently, Member States are not required to grant such a worker a right to maternity leave pursuant to that article."

The court also rejected the women's claim that failure to extend maternity leave benefits to workers in their situation amounted to sex discrimination.

A commissioning father who has had a baby through a surrogacy arrangement would be treated in the same way as a commissioning mother and would not be entitled to paid leave equivalent to maternity leave either, the court said, as it dismissed the argument.

D entered into a surrogacy agreement in accordance with UK law. The child was conceived using her partner's sperm and another woman's egg.

Some months after the birth, the English courts, with the surrogate mother's consent, granted D and her partner full and permanent parental responsibility for the child in accordance with UK legislation on surrogacy.

Z has a rare condition which has the effect that, although she has healthy ovaries and is otherwise fertile, she has no uterus and therefore cannot support a pregnancy.

She and her husband had a child as a result of an agreement with a surrogate mother in California. Genetically, the child is the couple's, and there is no reference to the surrogate mother's identity on the child's US birth certificate. Under Californian law, Z and her husband are considered the baby's parents.